BILL NUMBER: SB 1425 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 5, 2010
INTRODUCED BY Senators Simitian and Correa
( Principal coauthor: Assembly Member
Hernandez )
( Coauthor: Senator
DeSaulnier )
FEBRUARY 19, 2010
An act to amend Sections 22112.5, 22119.2, 22461, 22905,
24214.5, 26505, and 26806 of the Education Code, and to amend
Sections 20221, 20630, 20636, 20636.1, and 21220 of, and to add
Section 7500.5 to Sections 7500.5 and 21220.3
to, the Government Code, relating to public retirement
systems.
LEGISLATIVE COUNSEL'S DIGEST
SB 1425, as amended, Simitian. Public retirement: final
compensation: computation: retirees.
The Public Employees' Retirement Law (PERL) creates the Public
Employees' Retirement System (PERS), which provides a defined benefit
to its members based on age at retirement, service credit, and final
compensation. PERL defines "final compensation" for purposes of
calculating a member's retirement allowance. The State Teachers'
Retirement Law (STRL) and the retirement laws for county
employees and city employees also provide for a defined benefit based
on age at retirement, service credit, and final compensation.
This bill would provide , effective July 1, 2011,
that any change in salary, compensation, or remuneration
principally for the purpose of enhancing a member's benefits would
not be included in the calculation of a member's final compensation
for purposes of determining that member's defined benefit. The bill
would generally require the board of each state and local
public retirement system to establish, by regulation, accountability
provisions that would include an ongoing audit process to ensure that
a change in a member's salary, compensation, or remuneration is not
made principally for the purpose of enhancing a member's retirement
benefits. This bill would revise the definition of "creditable
compensation" and would limit the calculation of a member's
final compensation to an amount not to exceed the average increase in
compensation received within the final compensation period and the 2
preceding years by employees in the same or a related group as that
member. This bill would also require a board of each state and local
public retirement system to establish, by regulation, a requirement
that a retired person may not perform services for any employer
covered by a state or local retirement system until that person has
been separated from service for a period of at least 6
months 180 days. This bill would provide for the
implementation of these required chan ges under the laws
that govern PERS and STRL.
This bill includes Legislative findings expressing the public
purpose that would be served by the enactment of this bill
and expresses the Legislature's intent to enact legislation that
would ensure that these provisions are implemented by all state and
local public retirement systems .
This bill would, except as otherwise specified, provide that its
provisions would become operative on July 1, 2011. This bill would
further provide that it would only become operative if AB 1987 is
also enacted and takes effect on or before January 1, 2011.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares that:
(1) State and local public retirement boards have been authorized
under the law to administer retirement systems that provide adequate,
secure retirement benefits for beneficiaries
to participants who dedicate their life's work to public
service , and their beneficiaries .
(2) Employees partner with their public agency employers to fund
this benefit.
(3) Any manipulation of those benefits creates harm for the
employees, beneficiaries, employers, and taxpayers and should not be
permitted.
(b) The Legislature further finds and declares that the
that:
(1) The efficacy of the
retirement systems is threatened by the behavior of those who
seek to unfairly and unjustifiably enhance or "spike" their pensions.
(c)
(2) Neither the Legislature nor the courts ever
anticipated a circumstance where the application of the retirement
law would result in a method that permits inequitable application of
compensation rules in order to enhance an individual's retirement
allowance.
(d)
(3) It is the responsibility of the Legislature to
provide guidance to every retirement system so they
that each system can determine the proper
elements that go into calculating a member's retirement benefit as
recognized by the laws governing the each
retirement system.
(e)
(4) Retirement systems must employ sound
principals principles that provide consistent
treatment of compensation throughout a member's career and consistent
treatment of compensation earnable among a class
all classes of employees.
(f)
(5) In order to provide consistent treatment across the
retirement systems, the reporting system between
the procedures used by each retirement system
and each its participating
employer employers must be sufficiently precise
so as to enable the retirement system to distinguish between items of
remuneration that are and are not properly included in a member's
final compensation.
(c) The Legislature further finds and declares that consistent
administration of state and local public retirement systems is a
matter of statewide concern.
(d) The Legislature further finds and declares that the procedures
contained in this act provide the appropriate method for resolving
the inequitable application of compensation rules; and therefore,
provide for the consistent administration of state and local
retirement systems that is in the public's best interest.
SEC. 2. Section 7500.5 is added to the
Government Code, to read:
7500.5. (a) In order to safeguard the integrity and soundness of
all public retirement systems, assure prompt delivery of benefits and
related services to the participants and their beneficiaries, and
minimize employer expenses, all state and local public retirement
systems shall, at a minimum, administer their systems in compliance
with the provisions of this section. Nothing in this section shall be
construed to limit the Legislature's authority to adopt more
restrictive provisions applicable to a state or local public
retirement system.
(b) The board of each state and local public retirement system
shall establish, by regulation, accountability provisions applicable
to participating employers. Those accountability provisions shall
include an ongoing audit process to validate compliance with the
provisions of this section and penalty provisions for noncompliance
with the provisions of this section, including, but not limited to,
untimely or inaccurate submissions of any information the board may
require in the administration of the system.
(c) Any payrate, salary, special compensation, or other
remuneration determined by the board of a state or local public
retirement system to have been paid for the principal purpose of
enhancing a member's benefits under that system shall not be included
in any calculation of compensation earnable. Any presumption by the
board that salary or other remuneration was paid for the principal
purpose of enhancing a member's benefit under the system may be
rebutted by the member or by the employer on behalf of the member.
Upon receipt of sufficient evidence to the contrary, a presumption by
the board that salary or other remuneration was paid for the
principal purpose of enhancing a member's benefits under that system
may be reversed.
(d) Cash conversions of accrued employee benefits in amounts that
exceed the amount that is both earned and payable to the member
during a pay period shall not be credited to or included in any
calculation of compensation earnable by any state or local public
retirement system.
(e) Final settlement or termination pay or similar payment that is
received by a member in anticipation of retirement, upon retirement,
or separation from employment, shall not be credited to or included
in any calculation of compensation earnable by any state or local
public retirement system.
(f) A retired person, who has not reinstated following retirement,
whether or not he or she has attained the normal retirement age,
shall have a bona fide separation in service before performing
service for any employer covered by a state or local retirement
system as an employee, through a third party, or as an independent
contractor. A board of a state or local retirement system shall
establish, by regulation, the criteria under which a bona fide
separation is satisfied. A bona fide separation established by the
system shall not be less than six months.
(g) Compensation credited to, or included in, any calculation of
compensation earnable for an employee who is not in a group or class
shall not exceed, during the final compensation period as well as two
years immediately preceding the final compensation period, the
average increase in compensation earnable during the same period for
all employees of that same employer who are in the closest related
group or class.
(h) For the purposes of this section, the following definitions
shall apply:
(1) "A group or class of employees" means a number of employees of
the same employer considered together because they share job
similarities, work location, collective bargaining unit, or other
logical work grouping. Under no circumstance shall one employee be
considered a group or class.
(2) "Payrate or salary" means the normal monthly rate of pay or
monthly base pay of the member paid in cash and pursuant to publicly
available pay schedules to similarly situated members of the same
group or class of employment for services rendered on a full-time
basis during normal working hours.
(3) "Payrate or salary for a member who is not in a group or class"
means the monthly rate of pay or monthly base pay or salary of the
member, paid in cash and pursuant to publicly available pay
schedules, for services rendered on a full-time basis during normal
working hours, subject to the limitations of subdivision (g).
(4) "Special compensation" means a payment received for special
skills, knowledge, abilities, work assignment, workdays or hours, or
other work conditions.
(5) "Compensation earnable" means the salary or payrate, special
compensation, or other remuneration of the member used in the
determination of final compensation for the purposes of calculation
of a member's retirement benefit.
SEC. 3. (a) It is the intent of the Legislature
to enact changes in the Education Code applicable to the State
Teachers' Retirement System (Part 13 (commencing with Section 22000)
of Title 1 of the Education Code) to implement the provisions
established in Section 7500.5 of the Government Code.
(b) It is the intent of the Legislature to enact changes in the
Public Employee's Retirement Law (Part 3 (commencing with Section
20000) of Division 5 of Title 2 of the Government Code) to implement
the provisions established in Section 7500.5 of the Government Code.
(c) It is the intent of the Legislature to enact changes in the
County Employees Retirement Law (Part 3 (commencing with Section
31200) of Division 4 of Title 3 of the Government Code) to implement
the provisions established in Section 7500.5 of the Government Code.
(d) It is the intent of the Legislature to enact changes to
Chapter 2 (commencing with Section 45300) of Division 5 of Title 4 of
the Government Code, governing retirement plans established by
cities, to implement the provisions established in Section 7500.5 of
the Government Code.
(e) It is the intent of the Legislature to enact changes to
Chapter 4 (commencing with Section 50800) of Part 1 of Division 1 of
Title 5 of the Government Code, governing police officers' pension
fund laws and firemen's pension fund laws, to implement the
provisions established in Section 7500.5 of the Government Code.
SEC. 4. The provisions of this act shall be
operative for all active and future members of the applicable
retirement systems commencing on July 1, 2011.
SEC. 2. Section 22112.5 of the
Education Code is amended to read:
22112.5. (a) "Class of employees" means a number of employees
considered as a group because they are employed to perform similar
duties, are employed in the same type of program, or share other
similarities related to the nature of the work being performed.
(b) A class of employees may be comprised of one person
if no other person employed by the employer performs similar duties,
is employed in the same type of program, or shares other similarities
related to the nature of the work being performed and that same
class is in common use among other employers One
employee shall not be considered a class of employees .
(c) The board shall have the right to override the determination
by an employer as to whether or not a group or an individual
constitutes a "class of employees" within the meaning of
this section.
(d) The amendments to this section during the 1995-96 Regular
Session of the Legislature shall be deemed to have become operative
on July 1, 1996.
SEC. 3. Section 22119.2 of the
Education Code is amended to read:
22119.2. (a) "Creditable compensation" means remuneration that is
payable in cash by an employer to all persons in the same class of
employees , if applicable, and is paid to an employee for
performing creditable service. Contributions paid on creditable
compensation shall be credited to either the member's
Defined Benefit Program or the Defined Benefit Supplement Program, as
applicable, in accordance with subdivisions (b) and (f) and Section
22905. Creditable
(1 ) Creditable
compensation shall include be designated as
either of the following :
(1)
(A) Salary or wages paid in accordance with
a salary schedule or employment agreement for services performed
or the use of an employer-approved leave during a specified period
of time, the right of which accrues in proportion to the service
performed or the leave used .
(2)
(B) Remuneration that is paid in addition to salary,
providing it is payable to all persons who are in the same class of
employees , if applicable, in the same dollar amount, the
same percentage of salary, or the same percentage of the amount being
distributed. For purposes of this subparagraph, "remuneration
that is paid in addition to salary" shall include:
(i) Reimbursements or allowances for expenses, the payment of
which is not substantiated pursuant to Section 274(d) of the
Internal Revenue Code.
(ii) Cash payments made by the employer in exchange for a
member's waiver of a right to receive any payment, amount, or benefit
described in paragraphs (5) and (6) of subdivision (c).
(iii) Compensation that is payable for a specified number of
times as limited by law, a collective bargaining agreement, or an
employment agreement.
(iv) Lump-sum payments or bonus payments that are paid for
meeting career, educational, age, or performance-related criteria,
the right of which does not accrue in proportion to the service
performed or leave used.
(v) Any other payments the board may determine, pursuant to
regulations, to be "remuneration that is paid in addition to salary.
(3) Remuneration that is paid for the use of sick leave, vacation,
and other employer-approved leave, except as provided in paragraph
(4) of subdivision (c).
(2) Creditable compensation shall include the following:
(4)
( A) Member contributions that are picked up
by an employer pursuant to Section 22903 or 22904.
(5)
(B) Amounts that are deducted from a member's
compensation, including, but not limited to, salary deductions for
participation in a deferred compensation plan; deductions to purchase
an annuity contract, tax- deferred retirement plan, or insurance
program; and contributions to a plan that meets the requirements of
Section 125, 401(k), or 403(b) , or 457
of Title 26 of the United States Code.
(6)
(C) Any other payments amounts
the board determines may determine,
pursuant to regulations, to be "creditable compensation."
(b) Any salary or other remuneration determined by the board to
have been paid for the principal purpose of enhancing
to enhance a member's benefits under
the plan shall not be credited under the Defined Benefit
Program. Contributions on that compensation shall be credited to the
Defined Benefit Supplement Program. A presumption by the board that
salary or other remuneration was paid for the principal
purpose of enhancing to enhance the member's
benefits under the plan may be rebutted by the
member or by the employer on behalf of the member. Upon receipt of
sufficient evidence to the contrary, a presumption by the board that
salary or other remuneration was paid for the principal
purpose of enhancing to enhance the member's
benefits under the plan may be reversed. For
the purposes of this subdivision, the following salary or
remuneration shall be presumed to have been paid to enhance a member'
s benefits :
(1) Remuneration increasing a member's compensation earnable
from one year to the next during the final compensation period or in
either of the two years prior to the final compensation period in
excess of the greater of either of the following:
(A) Ten percent.
(B) Twice the percentage increase in the average compensation
earnable by active members of the Defined Benefit Program from the
prior year, as determined by the system.
(2) Any other salary or remuneration determined by the board
to have been paid to enhance a member's benefits.
(c) "Creditable compensation" does not mean and shall not include:
(1) Remuneration that is not payable in cash or is not payable to
all persons who are in the same class of employees.
(2) Remuneration that is paid for service that is not creditable
service pursuant to Section 22119.5.
(3) Remuneration that is paid in addition to salary if it is not
payable to all persons in the same class of employees in the same
dollar amount, the same percentage of salary, or the same percentage
of the amount being distributed pursuant to subparagraph (B) of
paragraph (2) (1) of subdivision
(a).
(4) Remuneration that is paid for unused accumulated leave.
(5) Annuity contracts, tax-deferred retirement plans, or insurance
programs and contributions to plans that meet the requirements of
Section 125, 401(k), or 403(b) of Title 26 of the United States Code
when the cost is covered by an employer and is not deducted from the
member's salary.
(6) Fringe benefits provided by an employer.
(7) Job-related expenses Expenses
paid or reimbursed by an employer.
(8) Expenses reimbursed by an employer, the payment of which is
substantiated pursuant to Section 274(d) of the Internal Revenue
Code.
(8)
(9 ) Severance pay or compensatory damages
or money paid to a member in excess of salary as a compromise
settlement.
(9)
(10 ) Any other payments the board
determines may determine, pursuant to regulations,
not to be "creditable compensation."
(d) An employer or individual who knowingly or willfully reports
compensation in a manner inconsistent with subdivision (a) or (c)
shall reimburse the plan for benefit overpayments that occur because
of that inconsistent reporting and may be subject to prosecution for
fraud, theft, or embezzlement in accordance with the Penal Code. The
system may establish procedures to ensure that compensation reported
by an employer is in compliance with this section.
(e) For purposes of this section, remuneration shall be considered
payable if it would be paid to any person who meets the
qualifications or requirements specified in a collective bargaining
agreement or an employment agreement as a condition of receiving the
remuneration.
(f) This definition of "creditable compensation" reflects sound
principles that support the integrity of the retirement fund. Those
principles include, but are not limited to, consistent treatment of
compensation throughout a member's career, consistent treatment of
compensation among an entire class of employees, preventing adverse
selection, and excluding from compensation earnable remuneration that
is paid for the principal purpose of enhancing
to enhance a member's benefits under the plan
. The board shall determine the appropriate crediting of
contributions between the Defined Benefit Program and the Defined
Benefit Supplement Program according to these principles, to the
extent not otherwise specified pursuant to this part.
(g) The section shall become operative on July 1, 2002, if the
revenue limit cost-of-living adjustment computed by the
Superintendent of Public Instruction for the 2001-02 fiscal year is
equal to or greater than 3.5 percent. Otherwise this section shall
become operative on July 1, 2003.
SEC. 4. Section 22461 of the Education
Code is amended to read:
22461. (a) Upon retaining A school
district, community college district, county superintendent of
schools, California State University, or other employing agency that
retains the services of a retired member under Section 24116,
24214, or 24215, the school district, community college
district, county superintendent of schools, California State
University, or other employing agency shall do both of the
following regardless of whether the retired member performs the
services as an employee of the employer, an employee of a third
party, or an independent contractor:
(1) Advise Prior to retention, advise
the retired member of the earnings limitation set forth in
Sections 24116, 24214, 24214.5, and 24215.
(2) Maintain accurate records of the retired member's earnings and
report those earnings monthly to the system and the retired member
regardless of the method of payment or the fund from which the
payments were made.
(b) This section shall not be construed to make any school
district, community college district, county superintendent of
schools, the California State University, or other employing agency
liable for any amount paid to the retired member in excess of the
earnings limitation under any circumstance, including the failure to
inform the retired member that continuation of service would exceed
the limitations.
SEC. 5. Section 22905 of the Education
Code is amended to read:
22905. (a) Member contributions pursuant to Section 22901,
employer contributions pursuant to Section 22903 or 22904, and member
contributions made by an employer pursuant to Section 22909 shall be
credited to the member's individual account under the Defined
Benefit Program or the Defined Benefit Supplement Program, whichever
is applicable pursuant to the provisions of this part.
(b) Member and employer contributions on a member's compensation
under the following circumstances shall be credited to the member's
Defined Benefit Supplement account:
(1) Compensation for creditable service that exceeds one year in a
school year.
(2) Compensation that is consistent with subdivision (b) of
Section 22119.2.
(3) Compensation that is payable for a specified number
of times as limited by law, a collective bargaining agreement, or an
employment agreement Remuneration that is
paid in addition to salary, in accordance with subparagraph (B) of
paragraph (1) of subdivision (a) of Section 2119.2 .
(4) Remuneration increasing a member's compensation earnable from
one year to the next in excess of the average percentage increase in
compensation earnable by the members in the closest related class of
employees during the same period reported by each employer, as
determined by the system, providing that:
(i) The remuneration is paid to a member who is not in a class of
employees in accordance with subdivision (b) of Section 22112.5.
(ii) The remuneration is either paid during the member's final
compensation period or either of the two years prior to the member's
final compensation period.
(iii) The remuneration is not paid as a result of a legitimate
change in the member's duties and responsibilities.
(c) A member may not make voluntary pretax or posttax
contributions under the Defined Benefit Supplement Program, except as
provided in subdivision (d), nor may a member redeposit amounts
previously distributed based on the balance in the member's Defined
Benefit Supplement account.
(d) Member and employer contributions pursuant to paragraph (1) of
subdivision (b) under the Defined Benefit Supplement Program shall
be credited to the accounts of members as of July 1 each year
following a determination by the system under the provisions of this
part that those contributions should be credited to the Defined
Benefit Supplement Program. Any other contributions under the Defined
Benefit Supplement Program pursuant to paragraph (2) or
, (3) , or (4) of subdivision (b),
shall be credited to the individual account of the member upon
receipt by the system. Contributions to a member's Defined Benefit
Supplement account shall be identified separately from the member's
contributions credited under the Defined Benefit Program.
(e) The provisions of this section shall become operative on July
1, 2002, if the revenue limit cost-of-living adjustment computed by
the Superintendent of Public Instruction for the 2001-02 fiscal year
is equal to or greater than 3.5 percent. Otherwise this section shall
become operative on July 1, 2003.
SEC. 6. Section 24214.5 of the
Education Code is amended to read:
24214.5. (a) Notwithstanding Section 24214, as of July
1, 2010, for employees retiring on or after January 1,
2011 , the postretirement compensation limitation
that shall apply to the compensation for performance of the
activities identified in subdivision (a) or (b) of Section 22119.5
either as an employee of an employer, an employee of a third party,
or as an independent contractor within the California public
school system shall be zero dollars ($0) during the first
six calendar months 180 days after a
member retired for service under this part , if the member
is below normal retirement age at the time the compensation is earned
.
(b) If a member retired for service under this part earns
compensation for performing activities identified in subdivision (a)
or (b) of Section 22119.5 in excess of the limitation specified in
subdivision (a), as an employee of an employer, as an employee of a
third party, or as an independent contractor, within the California
public school system, the member's retirement allowance shall be
reduced by the amount of the excess compensation. The amount of the
reduction may be equal to the monthly allowance payable but may not
exceed the amount of the annual allowance payable under this part for
the fiscal year in which the excess compensation was earned.
SEC. 7. Section 26505 of the Education
Code is amended to read:
26505. If a participant who has retired and is receiving an
annuity under the Cash Balance Benefit Program becomes reemployed
prior to 60 years of age or becomes reemployed on or after 60 years
of age but within one year of his or her retirement date, to perform
creditable service subject to coverage by the plan,
as an employee of an employer, as an employee of a
third party, or as an independent contractor within the California
public school system, the annuity shall be terminated, the
employee account and the employer account of the participant shall be
credited with respective balances that reflect the actuarial
equivalent of the participant's retirement benefit as of the date of
the reemployment and the Annuitant Reserve shall be reduced by the
amount of the credits. If
a participant who has retired and is receiving an annuity under the
Cash Balance Benefit Program becomes reemployed on or after age 60
and more than one year after retirement to perform creditable service
under the plan, the annuity shall continue and employee
contributions and employer contributions for the creditable service
shall be made to the plan and shall be credited to new employee and
employer accounts established on behalf of the participant.
SEC. 8. Section 26806 of the Education
Code is amended to read:
26806. The (a) The
normal form of retirement benefit under this part is a lump-sum
payment. Upon distribution of the lump-sum payment to the
participant, no further benefits shall be payable from the plan with
respect to the Cash Balance Benefit Program. The lump-sum
payment shall not be payable before 180 days have elapsed following
the date of termination of employment.
(b) The application to receive the normal form of a retirement
benefit shall be automatically canceled if the participant performs
creditable service as an employee of an employer, as an employee of a
third party, or as an independent contractor within the California
public school system within 180 days following the date of
termination of employment.
SEC. 9. Section 7500.5 is added to the
Government Code , to read:
7500.5. (a) In order to safeguard the integrity and soundness of
public retirement systems, assure prompt delivery of benefits and
related services to the participants and their beneficiaries, and
minimize employer expenses, state and local public retirement systems
shall administer retirement benefits in accordance with the
principles articulated in this section. Nothing in this section shall
be construed to limit the Legislature's authority to adopt more
restrictive benefit provisions applicable to a state or local public
retirement system.
(b) The board of each state and local public retirement system
shall establish, by statute or regulation, accountability provisions
that shall include an audit process to ensure compliance with the
principles articulated in the provisions of this section. The
accountability provisions shall be enforceable by the imposition of
monetary penalties or fees, including, but not limited to, untimely
or inaccurate submissions of any information that the board may
require in the administration of the system.
(c) Any payrate, salary, special compensation, or other
remuneration determined by the board of a state or local public
retirement system to have been paid for the principal purpose of
enhancing a member's retirement benefits under that system shall not
be included in compensation earnable. Where the board of a state or
local public retirement system determines that payrate, salary,
special compensation, or other remuneration was paid for the
principal purpose of enhancing a member's benefit, the member or the
employer may present evidence to the contrary. Upon receipt of
sufficient evidence to the contrary, a board may reverse its
determination that payrate, salary, special compensation, or other
remuneration was paid for the principal purpose of enhancing a member'
s retirement benefits.
(d) Cash conversions of accrued employee benefits in amounts that
exceed the amount that is both earned and payable to the member
during the member's applicable final compensation measurement period
shall not be credited to, or included in, compensation earnable by
any state or local public retirement system.
(e) Final settlement or termination pay or any similar payment
that is received by a member in anticipation of retirement, or
separation from employment, or upon retirement, shall not be included
in compensation earnable by any state or local public retirement
system.
(f) A retired person, who has not reinstated following retirement,
shall have a separation in service for a period of at least 180 days
before performing service for any employer covered by the state or
local retirement system from which he or she retired, whether as an
employee, through a third party, or as an independent contractor.
This requirement shall apply to all persons who retire on and after
January 1, 2011.
(g) Any increase in compensation earnable for an employee who is
not in a group or class shall not exceed, during the final
compensation period as well as two years immediately preceding the
final compensation period, the average increase in compensation
earnable during the same period for all similarly situated members in
the closest related group or class of that same employer.
(h) For the purposes of implementing this section, all state or
local public retirement systems shall have terms or definitions
consistent with the following:
(1) "A group or class" means a number of employees of the same
employer considered together because they share job similarities,
work location, collective bargaining unit, or other logical work
grouping. Under no circumstance shall one employee be considered a
group or class.
(2) "Payrate" or "salary" means the normal monthly rate of pay or
monthly base pay of the member paid in cash and pursuant to publicly
available pay schedules to similarly situated members of the same
group or class for services rendered on a full-time basis during
normal working hours.
(3) "Payrate" or "salary" for a member who is not in a group or
class means the monthly rate of pay or monthly base pay, paid in cash
and pursuant to publicly available pay schedules, for services
rendered on a full-time basis during normal working hours, subject to
the limitations of subdivision (g).
(4) "Special compensation" includes a payment received for special
skills, knowledge, abilities, work assignment, workdays or hours, or
other work conditions.
(5) "Compensation earnable" includes payrate, salary, special
compensation, or other remuneration, or any combination of the
forgoing, of the member.
SEC. 10. Section 20221 of the
Government Code is amended to read:
20221. Each state agency employer ,
school employer, and the chief administrative officer of a
contracting agency or any other person who its governing body may
designate shall furnish all of the following:
(a) Immediate notice to the board, in the manner prescribed by the
system, of the change in status of any member resulting from
hiring, transfer, promotion, leave of absence, resignation,
reinstatement, dismissal, or death.
(b) Immediate notice to the board, in the manner prescribed by the
system, of any change that may impact a member's payrate or special
compensation, as defined in Section 20636 or 20636.1, resulting from
the adoption, termination or amendment of any labor policy or
agreement.
(b)
(c ) Any additional information concerning
any member or the employer that the board may require in
the administration of this system.
(c)
(d ) The services of its officer and
departments that the board may request in connection with claims by
members against this system.
The board may assess a reasonable fee on any employer who fails to
provide information as required by this section within applicable
the time limits.
SEC. 11. Section 20630 of the
Government Code is amended to read:
20630. (a) As used in this part, "compensation" means the
remuneration paid out of funds controlled by the employer in payment
for the member's services performed during normal working hours or
for time during which the member is excused from work because of any
of the following:
(1) Holidays.
(2) Sick leave.
(3) Industrial disability leave, during which, benefits are
payable pursuant to Sections 4800 and 4850 of the Labor Code, Article
4 (commencing with Section 19869) of Chapter 2.5 of Part 2.6, or
Section 44043 or 87042 of the Education Code.
(4) Vacation.
(5) Compensatory time off.
(6) Leave of absence.
(b) When compensation is reported to the board, the employer shall
identify the pay period in which the compensation was earned
regardless of when reported or paid. Compensation shall be reported
in accordance with Section 20636 or 20636.1 and shall not
exceed compensation earnable, as defined in Section 20636 or
20636.1 .
(c) The board may assess a reasonable amount to cover the cost of
audit, adjustment, or correction, where it determines that an
employer knowingly failed to comply with subdivision (b). An employer
will be found to have knowingly failed to comply with subdivision
(b) if the board determines that the employer either:
(1) Knew or should have known that the compensation reported was
not compensation earnable, as defined in Section 20636 or 20636.1.
(2) Failed to identify the pay period in which compensation
earnable was earned as required.
(d) An employer shall not pass on to an employee any costs
assessed pursuant to subdivision (c).
SEC. 12. Section 20636 of the
Government Code is amended to read:
20636. (a) "Compensation earnable" by a member means the payrate
and special compensation of the member, as defined by subdivisions
(b), (c), and (g), and as limited by Section 21752.5.
(b) (1) "Payrate" means the normal monthly rate of pay or
monthly base pay of the member paid in cash to similarly
situated members of the same group or class of employment for
services rendered on a full-time basis during normal working hours,
pursuant to publicly available pay schedules. "Payrate," for a member
who is not in a group or class, means the monthly rate of pay or
monthly base pay of the member, paid in cash and pursuant
to publicly available pay schedules, for services rendered on a
full-time basis during normal working hours, subject to the
limitations of paragraph (2) of subdivision (e).
(2) "Payrate" shall include an amount deducted from a member's
salary for any of the following:
(A) Participation in a deferred compensation plan.
(B) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States Code.
(C) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(D) Participation in a flexible benefits program.
(3) The computation for a leave without pay of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence and shall report special compensation separately
from payrate .
(4) The computation for time prior to entering state service shall
be based on the compensation earnable by him or her in the position
first held by him or her in state service.
(c) (1) Special compensation of a member includes a payment
received for special skills, knowledge, abilities, work assignment,
workdays or hours, or other work conditions.
(2) Special compensation shall be limited to that which is
received by a member pursuant to a labor policy or agreement or as
otherwise required by state or federal law, to similarly situated
members of a group or class of employment that is in addition to
payrate. If an individual is not part of a group or class, special
compensation shall be limited to that which the board determines is
received by similarly situated members in the closest related group
or class that is in addition to payrate, subject to the limitations
of paragraph (2) of subdivision (e).
(3) Special compensation shall be for services rendered during
normal working hours and, when reported to the board, the employer
shall identify the pay period in which the special compensation was
earned.
(4) Special compensation may include the full monetary value of
normal contributions paid to the board by the employer, on behalf of
the member and pursuant to Section 20691, if the employer's labor
policy or agreement specifically provides for the inclusion of the
normal contribution payment in compensation earnable.
(5) The monetary value of a service or noncash advantage furnished
by the employer to the member, except as expressly and specifically
provided in this part, is not special compensation unless regulations
promulgated by the board specifically determine that value to be
"special compensation."
(6) The board shall promulgate regulations that delineate more
specifically and exclusively what constitutes "special compensation"
as used in this section. A written petition to request an
addition to the exclusive list that identifies and defines "special
compensation" items contained in board regulations may be made
pursuant to Section 11340.7. A uniform allowance, the monetary
value of employer-provided uniforms, holiday pay, and premium pay for
hours worked within the normally scheduled or regular working hours
that are in excess of the statutory maximum workweek or work period
applicable to the employee under Section 201 et seq. of Title 29 of
the United States Code shall be included as special compensation and
appropriately defined in those regulations.
(7) Special compensation does not include any of the following:
(A) Final settlement pay.
(B) Payments made for additional services rendered outside of
normal working hours, whether paid in lump sum or otherwise.
(8) A written request may be submitted for the board's
determination as to whether specific compensation items meet the
definition of special compensation. Determinations shall be made on
these requests within 90 calendar days of receipt of all information
required to be submitted by the board.
(C) Other payments the board has not affirmatively determined to
be special compensation.
(d) Notwithstanding any other provision of law, payrate and
special compensation schedules, ordinances, or similar documents
shall be public records available for public scrutiny.
(e) (1) As used in this part, "group or class of employment" means
a number of employees considered together because they share
similarities in job duties, work location, collective bargaining
unit, or other logical work-related grouping. One employee may not be
considered a group or class.
(2) Increases in compensation earnable granted to an employee who
is not in a group or class shall be limited during the final
compensation period applicable to the employees, as well as the two
years immediately preceding the final compensation period, to the
average increase in compensation earnable during the same period
reported by the employer for all employees
similarly situated members in the closest related group or class, or
who are in the same membership classification, except as may
otherwise be determined pursuant to regulations adopted by the board
that establish reasonable standards for granting exceptions.
(f) As used in this part, "final settlement pay" means pay or cash
conversions of employee benefits that are in excess of compensation
earnable, that are granted or awarded to a member in connection with,
or in anticipation of, a separation from employment. The board shall
promulgate regulations that delineate more specifically what
constitutes final settlement pay.
(g) (1) Notwithstanding subdivision (a), "compensation earnable"
for state members means the average monthly compensation, as
determined by the board, upon the basis of the average time put in by
members in the same group or class of employment and at the same
rate of pay, and is composed of the payrate and special compensation
of the member. The computation for an absence of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence and for time prior to entering state service shall be
based on the compensation earnable by him or her in the position
first held by him or her in that state service.
(2) Notwithstanding subdivision (b), "payrate" for state members
means the average monthly remuneration paid in cash out of funds paid
by the employer to similarly situated members of the same group or
class of employment, pursua nt to publicly available
pay schedules, in payment for the member's services or for time
during which the member is excused from work because of holidays,
sick leave, vacation, compensating time off, or leave of absence.
"Payrate" for state members shall include:
(A) An amount deducted from a member's salary for any of the
following:
(i) Participation in a deferred compensation plan established
pursuant to Chapter 4 (commencing with Section 19993) of Part 2.6.
(ii) Payment for participation in a retirement plan that meets the
requirements of Section 401(k) of Title 26 of the United States
Code.
(iii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(iv) Participation in a flexible benefits program.
(B) A payment in cash by the member's employer to one other than
an employee for the purpose of purchasing an annuity contract for a
member under an annuity plan that meets the requirements of Section
403(b) of Title 26 of the United States Code.
(C) Employer "pick up" of member contributions that meets the
requirements of Section 414(h)(2) of Title 26 of the United States
Code.
(D) Disability or workers' compensation payments to safety members
in accordance with Section 4800 of the Labor Code.
(E) Temporary industrial disability payments pursuant to Article 4
(commencing with Section 19869) of Chapter 2.5 of Part 2.6.
(F) Other payments the board may determine to be within "payrate."
(3) Notwithstanding subdivision (c), "special compensation" for
state members shall mean all of the following:
(A) The monetary value, as determined by the board, of living
quarters, board, lodging, fuel, laundry, and other advantages of any
nature furnished to a member by his or her employer in payment for
the member's services.
(B) Compensation for performing normally required duties, such as
holiday pay, bonuses (for duties performed on regular work shift),
educational incentive pay, maintenance and noncash payments,
out-of-class pay, marksmanship pay, hazard pay, motorcycle pay,
paramedic pay, emergency medical technician pay, Peace Officer
Standards and Training (POST) certificate pay, and split shift
differential.
(C) Compensation for uniforms, except as provided in Section
20632.
(D) Other payments the board may determine to be within "special
compensation."
(4) "Payrate" and "special compensation" for state members do not
include any of the following:
(A) The provision by the state employer of a medical or hospital
service or care plan or insurance plan for its employees (other than
the purchase of annuity contracts as described below in this
subdivision), a contribution by the employer to meet the premium or
charge for that plan, or a payment into a private fund to provide
health and welfare benefits for employees.
(B) A payment by the state employer of the employee portion of
taxes imposed by the Federal Insurance Contribution Act.
(C) Amounts not available for payment of salaries and that are
applied by the employer for the purchase of annuity contracts
including those that meet the requirements of Section 403(b) of Title
26 of the United States Code.
(D) Benefits paid pursuant to Article 5 (commencing with Section
19878) of Chapter 2.5 of Part 2.6.
(E) Employer payments that are to be credited as employee
contributions for benefits provided by this system, or employer
payments that are to be credited to employee accounts in deferred
compensation plans. The amounts deducted from a member's wages for
participation in a deferred compensation plan may not be considered
to be "employer payments."
(F) Payments for unused vacation, annual leave, personal leave,
sick leave, or compensating time off, whether paid in lump sum or
otherwise.
(G) Final settlement pay.
(H) Payments for overtime, including pay in lieu of vacation or
holiday.
(I) Compensation for additional services outside regular duties,
such as standby pay, callback pay, court duty, allowance for
automobiles, and bonuses for duties performed after the member's
regular work shift.
(J) Amounts not available for payment of salaries and that are
applied by the employer for any of the following:
(i) The purchase of a retirement plan that meets the requirements
of Section 401(k) of Title 26 of the United States Code.
(ii) Payment into a money purchase pension plan and trust that
meets the requirements of Section 401(a) of Title 26 of the United
States Code.
(K) Payments made by the employer to or on behalf of its employees
who have elected to be covered by a flexible benefits program, where
those payments reflect amounts that exceed the employee's salary.
(L) Other payments the board may determine are not "payrate" or
"special compensation."
(5) If the provisions of this subdivision, including the board's
determinations pursuant to subparagraph (F) of paragraph (2) and
subparagraph (D) of paragraph (3), are in conflict with the
provisions of a memorandum of understanding reached pursuant to
Section 3517.5 or 3560, the memorandum of understanding shall be
controlling without further legislative action, except that if the
provisions of a memorandum of understanding require the expenditure
of funds, those provisions may not become effective unless approved
by the Legislature in the annual Budget Act. No memorandum of
understanding reached pursuant to Section 3517.5 or 3560 may exclude
from the definition of either "payrate" or "special compensation" a
member's base salary payments or payments for time during which the
member is excused from work because of holidays, sick leave,
vacation, compensating time off, or leave of absence. If items of
compensation earnable are included by memorandum of understanding as
"payrate" or "special compensation" for retirement purposes for
represented and higher education employees pursuant to this
paragraph, the Department of Personnel Administration or the Trustees
of the California State University shall obtain approval from the
board for that inclusion.
(6) (A) Subparagraph (B) of paragraph (3) prescribes that
compensation earnable includes compensation for performing normally
required duties, such as holiday pay, bonuses (for duties performed
on regular work shift), educational incentive pay, maintenance and
noncash payments, out-of-class pay, marksmanship pay, hazard pay,
motorcycle pay, paramedic pay, emergency medical technician pay, POST
certificate pay, and split shift differential; and includes
compensation for uniforms, except as provided in Section 20632; and
subparagraph (I) of paragraph (4) excludes from compensation earnable
compensation for additional services outside regular duties, such as
standby pay, callback pay, court duty, allowance for automobile, and
bonuses for duties performed after regular work shift.
(B) Notwithstanding subparagraph (A), the Department of Personnel
Administration shall determine which payments and allowances that are
paid by the state employer shall be considered compensation for
retirement purposes for an employee who either is excluded from the
definition of state employee in Section 3513, or is a nonelected
officer or employee of the executive branch of government who is not
a member of the civil service.
(C) Notwithstanding subparagraph (A), the Trustees of the
California State University shall determine which payments and
allowances that are paid by the trustees shall be considered
compensation for retirement purposes for a managerial employee, as
defined in Section 3562, or supervisory employee as defined in
Section 3580.3.
SEC. 13. Section 20636.1 of the
Government Code is amended to read:
20636.1. (a) Notwithstanding Section 20636, and Section 45102 of
the Education Code, "compensation earnable" by a school member means
the payrate and special compensation of the member, as defined by
subdivisions (b) and (c), and as limited by Section 21752.5.
(b) (1) "Payrate" means the normal monthly rate of pay or
monthly base pay of the member paid in cash to similarly
situated members of the same group or class of employment for
services rendered on a full-time basis during normal working hours
, pursuant to publicly available pay schedules . For
purposes of this part, for classified members, full-time employment
is 40 hours per week, and payments for services rendered, not to
exceed 40 hours per week, shall be reported as compensation earnable
for all months of the year in which work is performed. "Payrate," for
a member who is not in a group or class, means the monthly rate of
pay or monthly base pay of the member, paid in cash and
pursuant to publicly available pay schedules, for services rendered
on a full-time basis during normal working hours, subject to the
limitations of paragraph (2) of subdivision (e).
(A) For the purposes of this section, "classified members" shall
mean members who retain membership under this system while employed
with a school employer in positions not subject to coverage under the
Defined Benefit Program under the State Teacher's Retirement System.
(B) For the purposes of this section, and Sections 20962 and
20966, "certificated members" shall mean members who retain
membership under this system while employed in positions subject to
coverage under the Defined Benefit Program under the State Teacher's
Retirement System.
(2) The computation for any leave without pay of a member shall be
based on the compensation earnable by him or her at the beginning of
the absence.
(3) The computation for
time prior to entering state service shall be based on the
compensation earnable by him or her in the position first held by him
or her in state service.
(c) (1) Special compensation of a school member includes any
payment received for special skills, knowledge, abilities, work
assignment, workdays or hours, or other work conditions.
(2) Special compensation shall be limited to that which is
received by a member pursuant to a labor policy or agreement or as
otherwise required by state or federal law, to similarly situated
members of a group or class of employment that is in addition to
payrate. If an individual is not part of a group or class, special
compensation shall be limited to that which the board determines is
received by similarly situated members in the closest related group
or class that is in addition to payrate, subject to the limitations
of paragraph (2) of subdivision (e).
(3) Special compensation shall be for services rendered during
normal working hours and, when reported to the board, the employer
shall identify the pay period in which the special compensation was
earned , and shall report special compensation separately from
payrate .
(4) Special compensation may include the full monetary value of
normal contributions paid to the board by the employer, on behalf of
the member and pursuant to Section 20691, provided that the employer'
s labor policy or agreement specifically provides for the inclusion
of the normal contribution payment in compensation earnable.
(5) The monetary value of any service or noncash advantage
furnished by the employer to the member, except as expressly and
specifically provided in this part, shall not be special compensation
unless regulations promulgated by the board specifically determine
that value to be "special compensation."
(6) The board shall promulgate regulations that delineate more
specifically and exclusively what constitutes "special compensation"
as used in this section. A written petition to request an
addition to the exclusive list that identifies and defines "special
compensation" items contained in board regulations may be made
pursuant to Section 11340.7. A uniform allowance, the monetary
value of employer-provided uniforms, holiday pay, and premium pay for
hours worked within the normally scheduled or regular working hours
that are in excess of the statutory maximum workweek or work period
applicable to the employee under Section 201 et seq. of Title 29 of
the United States Code shall be included as special compensation and
appropriately defined in those regulations.
(7) Special compensation does not include any of the following:
(A) Final settlement pay.
(B) Payments made for additional services rendered outside of
normal working hours, whether paid in lump sum or otherwise.
(C) Any other payments the board has not affirmatively determined
to be special compensation.
(8) A written request may be submitted for the board's
determination as to whether specific compensation items meet the
definition of special compensation. Determinations shall be made on
these requests within 90 calendar days of receipt of all information
required to be submitted by the board.
(d) Notwithstanding any other provision of law, payrate and
special compensation schedules, ordinances, or similar documents
shall be public records available for public scrutiny.
(e) (1) As used in this part, "group or class of employment" means
a number of employees considered together because they share
similarities in job duties, work location, collective bargaining
unit, or other logical work-related grouping. Under no circumstances
shall one employee be considered a group or class.
(2) Increases in compensation earnable granted to any employee who
is not in a group or class shall be limited during the final
compensation period applicable to the employees, as well as the two
years immediately preceding the final compensation period, to the
average increase in compensation earnable during the same period
reported by the employer for all employees
similarly situated members in the closest related group or class or
who are in the same membership classification, except as may
otherwise be determined pursuant to regulations adopted by the board
that establish reasonable standards for granting exceptions.
(f) As used in this part, "final settlement pay" means any pay or
cash conversions of employee benefits that are in excess of
compensation earnable, that are granted or awarded to a member in
connection with or in anticipation of a separation from employment.
The board shall promulgate regulations that delineate more
specifically what constitutes final settlement pay.
SEC. 14. Section 21220 of the
Government Code is amended to read:
21220. (a) A person who has been retired under this system, for
service or for disability, may not be employed in any capacity
thereafter by the state, the university, a school employer, or a
contracting agency, unless any of the following conditions are
satisfied: the
(1) The employment qualifies for
service credit in the University of California Retirement Plan or the
State Teachers' Retirement Plan , unless
he .
(2) He or she has first been
reinstated from retirement pursuant to this chapter , or
unless the employment, .
(3) For a person retiring on or after
January 1, 2011, the employment, without reinstatement, is
authorized by this article and at least 180 days have elapsed
since that person's retirement date . A
(b) A retired person whose
employment without reinstatement is authorized by this article shall
acquire no service credit or retirement rights under this part with
respect to the employment.
(b)
(c) Any retired member employed in violation of this
article shall:
(1) Reimburse this system for any retirement allowance received
during the period or periods of employment that are in violation of
law.
(2) Pay to this system an amount of money equal to the employee
contributions that would otherwise have been paid during the period
or periods of unlawful employment, plus interest thereon.
(3) Contribute toward reimbursement of this system for
administrative expenses incurred in responding to this situation, to
the extent the member is determined by the executive officer to be at
fault.
(c)
(d) Any public employer that employs a retired member
in violation of this article shall:
(1) Pay to this system an amount of money equal to employer
contributions that would otherwise have been paid for the period or
periods of time that the member is employed in violation of this
article, plus interest thereon.
(2) Contribute toward reimbursement of this system for
administrative expenses incurred in responding to this situation, to
the extent the employer is determined by the executive officer of
this system to be at fault.
SEC. 15. Section 21220.3 is added to the
Government Code , to read:
21220.3. (a) A person who has retired under this system, for
service or for disability, may not render services for compensation
in any capacity for the state, the university, a school employer, or
a contracting agency, through a third party or as an independent
contractor, for a period of 180 days following the date of his or her
retirement.
(b) Any retired member who provides services in violation of this
section shall:
(1) Cease performing services for compensation and shall not be
eligible to again perform services for a period of 180 days following
the last date he or she performed services.
(2) Contribute toward reimbursement for administrative expenses
incurred by the system because of the violation, to the extent that
the retired member is determined by the executive officer of this
system to be at fault. For purposes of this subdivision, a retired
member shall be determined to be at fault if the retired member knew
or should have known that he or she was performing services in
violation of this section.
(c) Any public employer that utilizes the services of a retired
member in violation of this section shall contribute toward
reimbursement of this system for administrative expenses incurred by
this system because of the violation, to the extent that the employer
is determined, by the executive officer of this system, to be at
fault. For purposes of this subdivision, a public employer shall be
determined to be at fault if the public employer knew or should have
known that the retired member was performing services in violation of
this section.
(d) This section shall apply to all persons who retire on and
after January 1, 2011.
SEC. 16. Except as otherwise specifically
provided, the provisions of this act shall become operative on July
1, 2011.
SEC . 17. This bill shall become
operative only if Assembly Bill 1987 of the 2009-10 Regular Session
is enacted and takes effect on or before January 1, 2011.